IMMEDIATELY after Icasa’s watershed media conference on the SABC’s ban on footage of violent protest, conflicting reports emerged of exactly what Icasa had said.
According to some reports Icasa “recommended” the SABC lift its ban, others said the broadcaster was “ordered” or “directed” to take action.

Distinction

It’s an important distinction, and one that the SABC board appeared to pick up on later, although incorrectly, with COO Hlaudi Motsoeneng referring to certain “recommendations” that were not going to trouble the SABC.
In fact however what Icasa released at its media conference was not a set of recommendations. The recommendations were made some time before as part of an internal Icasa dialogue in the days prior to the final order being made public.
After hearing argument from both sides in the dispute, Icasa’s independent complaints tribunal wrote a judgment which it then conveyed to the Icasa Council. If you read the full text of the judgment, below, you will see that this judgment is dated 3 July 2016, a week before the result was released.

Approve and issue

Having written its judgment, the complaints committee recommended to the council that it approve the judgment and issue the proposed order as its own. And on July 11, at its public briefing, that is exactly what the council did.
By the time the council spoke therefore the outcome was no longer a “recommendation”. Instead it was a legally enforceable order, in terms of the Icasa Act.

But what did the judgment say?

It began with a summary of how the Icasa system worked – the process mandated by law – and of the positions of the two sides in the dispute. It reproduced the full media statement issued by the SABC on 26 May 2016, headed “SABC will no longer broadcast footage of destruction of public property during protests” and then it considered the positions of the two sides in the dispute against the background of the Constitution and its requirements as well as how the courts have interpreted media freedom under the Constitution.

The committee noted that Gilbert Marcus SC for the three complainants – the Media Monitoring Project, SOS Support Public Broadcasting Coalition and the Freedom of Expression Institute – stressed that their complaint was not that the SABC ought to cover “each instance of graphic violence” during a service delivery protest. “That has never been the complainants’ case.”

“Rather, this complaint is about a narrower issue: whether the SABC is empowered to adopt – in advance – a blanket ban on covering an entire category of conduct.”

Distinction

If you listened to the media conference called by the SABC board after the Icasa judgment was delivered, however, it would have been clear that the board had still not properly understood this distinction.

The judgment noted that our courts had repeatedly stressed the “pivotal role” of the media: “it is the watchdog of society, keeping check over the government by keeping the public informed of all matters of public importance and, in particular, allegations regarding the government of the day’s performance.”

The courts have also strongly rejected “thought control” and this rejection “is at the heart of freedom of expression in a constitutional democracy”. One quoted judgment of the Constitutional Court in fact said that we must be “particularly astute to outlaw any form of thought-control, however respectably dressed.”

All of this meant that the public broadcaster played a critical role in empowering citizens so they could exercise their right to freedom of expression, particularly since so many people “receive their news primarily from the SABC”.

There was nothing in the SABC legislation or licences that permitted the broadcaster to impose “an absolute restraint” on its newsroom.

Apartheid

The judgment holds that “at the core of the matter” lies “the categorical ban” by the SABC on certain material and the committee likened this to the “legislative ban which was imposed on quoting persons listed in terms of the security legislation in apartheid times.”

“There was no choice granted to newspapers to publish statements by these persons, even if they were politically irrelevant. This amounted to nothing else than absolutism which was typical of a tyrannical regime. Such absolutism is totally foreign to our new democracy based on freedom of expression.”

That theme – that we are now in a different dispensation under which banning of material is not acceptable, unlike the years under apartheid – continued through much of the judgment.

Not a dictatorship

“The order of the SABC places an absolute ban on a subject,” the judgment said. “A subject, as such, may never be blocked from SABC television or radio – South Africa is not, as in the apartheid era, a dictatorship. The Broadcasting Code does, indeed, place certain limits on the screening of violence, but that Code may only be applied when a complaint is lodged with the relevant authority … and after a broadcast …. Furthermore, the Broadcasting Code is clear as to the broadcast of violence. It does not prohibit the mere broadcasting of violence, but it depends on the manner in which it is broadcast.”

But apart from offending the Constitution, the SABC’s directive banning particular subject matter from broadcast was also in breach of its own licence conditions: “In terms of its licence conditions, the SABC is required in the production of its news and current affairs to: meet the highest standards of journalistic professionalism; provide fair, unbiased, impartial and balanced coverage independent from governmental, commercial or other interference; and provide a reasonable opportunity for the public to receive a variety of points of view on matters of public concern.

“The SABC resolution in the present matter amounts, at its core, to a categorical blocking of the public’s right to information in conflict with the Broadcasting Act which places a duty on the SABC to keep the public informed in the public interest. This resolution is in conflict with the Broadcasting Act (and) the Constitution. It is also in conflict with the licence conditions of the SABC. Our conclusion is that the SABC has acted outside its powers in taking the decision as published in the 26 May statement. Ultimately, one of the core values in terms of our Constitution is legality and the decision of the SABC did not comply with this central constitutional value.”

Invalid

Then follows the finding, worded in a way that is particularly significant: “The order by the SABC was invalid from its inception. The complaint is accordingly upheld.”

The ruling that the SABC’s order was never at any stage valid, might have been overlooked initially, but the significance is that no step taken in terms of this order can be considered as valid – not even firing or suspending journalists. Just what the impact will be on the fate of those journalists left dangling by the SABC after their initial suspension will become clearer as their legal advisors study the text more closely. It will also be critical in dealing with any further action by the SABC against its journalists, something foreshadowed by Motsoeneng after the Icasa judgment was released, when he said the SABC would unleash “Operation Cleanup” to deal with recalcitrant staff.

The SABC’s order was further clearly stated to have been “in conflict with its duties as a public broadcaster”.

Writing

Finally, as is well known by now, the judgment’s draft order – confirmed and issued as its own by the Icasa council – included the instruction that the SABC board “must confirm in writing” to Icasa “within seven calendar days from the date on which the order is emailed to the Chairperson of the Board of the SABC that the above resolution was taken as ordered.”

While the SABC board took a belligerent line in response to the judgment and talked of various steps it would take to challenge the result, the board is faced with the reality that, pending the outcome of any such challenge, Icasa’s judgment – including its requirement for compliance within seven days – stands.